958 F.3d 1308
11th Cir.2020Background
- Harbourside Place is an 11-acre commercial development in Jupiter, FL, with an outdoor amphitheater; Water’s Edge Estates is a nearby residential development.
- Harbourside sued the Town of Jupiter and its CRA under 42 U.S.C. § 1983 after Jupiter applied its Code to restrict live musical performances and later enacted Ordinance 1-16 regulating amplified sound and outdoor live music.
- Ordinance 1-16: generally bans outdoor sound amplification from 11:00 p.m.–7:00 a.m.; grants an extra hour (to midnight) for approved "outdoor venues" that meet §13-107(b) criteria and sound standards; requires outside live musical performances to meet outdoor-venue rules or obtain Chapter 27 special permits.
- Harbourside sought a pre-enforcement preliminary injunction, arguing (1) it qualifies as a certified outdoor venue and (2) challenged provisions are content-based or an unconstitutional prior restraint on music.
- The district court held Harbourside failed to meet outdoor-venue criteria (citing unresolved Condition 11, sound-limit failures, deficient studies, and expert affidavits showing exceedances) and found the challenged code provisions content-neutral; denied injunctive relief.
- On limited abuse-of-discretion review, the Eleventh Circuit affirmed: it declined to definitively decide whether §13-107(a)(3) is facially content-based, but held the district court did not abuse its discretion in finding Harbourside lacked a substantial likelihood of success; it also declined to address the prior-restraint claim not litigated below.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Whether Harbourside met the criteria to be an approved outdoor venue under §13-107(b) and Resolution No. 2-13 | Harbourside: Condition 11 applied only before final plans/building permits, which already issued; thus it satisfied venue conditions. | Jupiter: Resolution and Code requirements remained to be satisfied; Harbourside failed to meet multiple conditions, had deficient sound studies, and repeatedly exceeded sound limits. | Harbourside failed to show a substantial likelihood of success; district court’s factual findings that venue criteria were unmet were not clearly erroneous. |
| 2. Whether general amplification restrictions (§13-107(a)(1) and (b)) are content-based | Harbourside: noise rules regulate musical performance and therefore target protected expression. | Jupiter: Provisions apply to all outdoor amplification regardless of content; they are time/place/manner rules and content-neutral. | The court affirmed the district court: those provisions are content-neutral on their face; no abuse of discretion in rejecting Harbourside’s challenge. |
| 3. Whether §13-107(a)(3) (outside live musical performances must meet venue rules or obtain special permits) is content-based | Harbourside: singling out live musical performances (as opposed to recorded music or other live speech) discriminates by medium/function and therefore is content-based. | Jupiter: Rule treats all live music equally and does not single out genres or viewpoints; live music’s special acoustic characteristics justify regulation as content-neutral. | The court declined to decide definitively; on the limited record and briefing it held the district court did not abuse its discretion in concluding Harbourside lacked a substantial likelihood of success on a content-based challenge. |
| 4. Whether the special-permit/outdoor-venue requirement is an unconstitutional prior restraint | Harbourside: special permits and venue approvals impose prior restraints on music. | Jupiter: (Not fully briefed below) Jupiter relied on its permitting scheme and regulatory interests. | Court refused to reach the prior-restraint argument because Harbourside failed to present or develop it in the district court; Harbourside may raise it on remand. |
Key Cases Cited
- Reed v. Town of Gilbert, 576 U.S. 155 (U.S. 2015) (content-based speech regulations are presumptively unconstitutional and trigger strict scrutiny)
- Ward v. Rock Against Racism, 491 U.S. 781 (U.S. 1989) (time, place, and manner test for content-neutral regulation of amplified music)
- Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (U.S. 1994) (distinguishing medium-based regulation; not all medium distinctions require strict scrutiny)
- City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (U.S. 1993) (ordinance was content-based where enforcement depended on the content of publications)
- McCullen v. Coakley, 573 U.S. 464 (U.S. 2014) (regulation requiring examination of message to determine violation indicates content scrutiny)
- Grayned v. City of Rockford, 408 U.S. 104 (U.S. 1972) (explaining content-based regulation concept)
- Thomas v. Chicago Park Dist., 534 U.S. 316 (U.S. 2002) (permit requirement upheld as content-neutral time/place/manner regulation)
- Kovacs v. Cooper, 336 U.S. 77 (U.S. 1949) (upholding noise regulation as permissible restriction on sound amplification)
- Schad v. Borough of Mt. Ephraim, 452 U.S. 61 (U.S. 1981) (invalidating broad bans on live entertainment under First Amendment scrutiny)
- Café Erotica of Fla., Inc. v. St. Johns Cty., 360 F.3d 1274 (11th Cir. 2004) (prior-restraint analysis requires defined decision deadlines and limits on official discretion)